Courts and More Vol. 1 | No. 37 | September 22, 2021

Oklahoma Court of Civil Appeals

Division I

118,706  –  In the Matter of the Adoption of A.A.R.M., a minor child: Patricia Michelle Lay, Respondent/Appellant, v. Jerri Van Ellen, Petitioner/Appellee.  Appeal from the District Court of Okmulgee County, Oklahoma.  Honorable Cynthia D. Pickering, Judge.  This appeal springs from a proceeding filed by Petitioner/Appellee Jerri Van Ellen (Van Ellen) to adopt minor child A.A.R.M. without the consent of the child’s natural mother, Respondent/Appellant Patricia Michelle Lay (Mother).  Mother appeals the final decree of adoption, the order terminating her parental rights, and an order waiving the preplacement home study required by the Oklahoma Adoption Code.  After de novo review, we find Mother was not provided with the notice required by 10 O.S. 2011 §7505-4.1(C).  Further, 10 O.S. 2011 §§7505-5.1 and 7505-5.2 do not give the trial court discretion to waive the home study requirement under these circumstances.  Accordingly, we reverse.  Opinion by MITCHELL, J.; GOREE, P.J., and PRINCE, J., concur.  September 16, 2021

 118,740  –  Transcontinental Gas Pipeline Company, LLC, Plaintiff/Appellant, v. G.A. West & Company, Inc., Legacy Equipment, Inc., Gary Allen West d.b.a Quality and Precision Fabricators, Inc., Gary Allen West, Samuel Jackson, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Damon H. Cantrell, Judge. After a similar action was filed in Pennsylvania, Plaintiff/Appellant, Transcontinental Gas Pipe Line Company, LLC commenced this action in Oklahoma against Defendants/Appellees, G.A. West & Company, Inc.; Legacy Equipment, Inc.; Samuel Jackson; Gary Allen West; and Gary Allen West d/b/a Quality and Precision Fabricators, Inc.  We hold: (1) the trial court did not abuse its jurisdiction when it dismissed the Oklahoma case based on the doctrine of comity, and (2) the district court lacks personal jurisdiction because plaintiff’s injuries did not arise from activities the non-resident defendants directed toward Oklahoma.  AFFIRMED. Opinion by GOREE, P.J.; MITCHELL, J.,concurs and PRINCE, J. special concurs.  September 16, 2021

119,222  –  Multiple Injury Trust Fund, Petitioner, v. Pam J.Dodson and The Workers’ Compensation Court of Existing Claims, Respondents.  Proceeding to Review an Order of a Three Judge Panel of the Workers’ Compensation Court of Existing Claims, Petitioner Multiple Injury Trust Fund (the Fund) seeks review of an order of a three-judge panel of the Workers’ Compensation Court of Existing Claims, vacating the decision of the trial court and awarding Respondent Pam J. Dodson (Claimant) permanent total disability (PTD) benefits against the Fund.  On appeal, the Fund claims the panel’s finding that Claimant was a physically impaired person based on obvious and apparent loss of use of her feet, hands, and arms as a result of fibromyalgia was against the clear weight of the evidence.  The Fund also argues the panel erred by finding Claimant was PTD from a combination of injuries.  We SUSTAIN AS MODIFIED.  Opinion by MITCHELL, J.; GOREE, P.J., PRINCE, J., concur.  September 16, 2021

119,257  –  Joe Daniel Hendrickson, Petitioner/Appellant, v. Multiple Injury Trust Fund and the Workers’ Compensation Commission, Respondents/Appellees.  Proceed to Review an Order of The Workers’ Compensation Commission En Banc.  The Petitioner/Appellant, Joe Daniel Hendrickson (“Claimant”), appeals an order of the Workers’ Compensation Commission en banc affirming an Order Denying Multiple Injury Trust Fund Benefits.  The ultimate issue here is whether the combination of Petitioner’s injuries rendered him permanently and totally disabled.  The WCC affirmed the ALJ’s decision to deny the Petitioner MITF benefits finding, in part, that it was appropriate to deviate from the opinion of the Commission Independent Medical Examiner.  We find that the WCC’s decision to deviate from the opinion of the CIME was based on clear and convincing evidence, that the decision of the WCC was not affected by an error of law and was not clearly erroneous in view of the substantial competent evidence.  Consequently, the decision of the WCC is affirmed.  Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur.  September 16, 2021

119,441  –  In the Matter of the Adoption of G.R.C., a minor child, Jordan Tanner Swinea, Appellant, v. Rocky Cash, Appellee.  Appeal from the District Court of Pawnee County, Oklahoma.  Honorable Patrick Pickerill, Trial Judge.  Petitioner/Appellee, Rocky Cash, sought to adopt G.R.C. without Appellant’s consent.  Respondent/Appellant, Jordan Tanner Swinea, is the biological father of G.R.C.  The trial court held that Appellant’s consent to the adoption was not necessary due to his failure to provide support to G.R.C. in accordance with his financial ability for twelve consecutive months out of the fourteen months immediately preceding the filing of the Petition for Adoption.  Appellant was incarcerated for the majority of the fourteen months immediately preceding the adoption action.  When a parent is incarcerated and has no ability to provide support, the proper inquiry is whether the individual intentionally incapacitated himself or herself in order to avoid their duty to support.  The record does not support a finding that Appellant willfully failed to support G.R.C. Consequently, the decision of the trial court is reversed.  Opinion by PRINCE, J.; GOREE, P.J., and MITCHELL, J., concur.  September 16, 2021

119,526  –  Jeffrey Elias, Petitioner, v. City of Tulsa and Own Risk #10435, and The Workers’ Compensation Commission, Respondents.  Appeal from the Workers’ Compensation Commission En Banc.  Jeff Elias (“Appellant”) seeks review of an Order Affirming Decision of Administrative Law Judge by the Oklahoma Workers’ Compensation Commission En Banc (“Commission”) filed on April 7, 2021.  The issues here are: (1) whether the Order denying Appellant monetary benefits was based on the appropriate interpretation of 85A O.S. § 46H; and (2) whether § 46H violates the fundamental protections of due process, Okla. Const., art. II, § 6, and represents a special law, prohibited by Okla. Const. art. 5, § 59.  We base our holding on the fundamental principle that it is not the role of the judiciary to weigh the wisdom of legislation, as such decisions are the proper province of the Legislature—regardless of the harshness of the outcome.  For the reasons stated, we answer the questions presented in the negative and affirm the decision of the Commission.  Opinion by Prince, J.; GOREE, P.J., and MITCHELL, J., concur.  September 16, 2021

Division II

119,112  –  In the Matter of AA, an alleged Deprived child: Casandra Welch, Appellant, v. State of Oklahoma, Appellee.  Appeal from the District Court of Kingfisher County, Oklahoma.  Honorable Lance Schneiter, Trial Judge. Appellant, Cassandra Welch (Mother), appeals from the trial court’s order terminating her parental rights to her minor child, A.A. (Child).  The trial court determined that Appellee, the State of Oklahoma (State), sustained its burden of proving with clear and convincing evidence that Mother’s parental rights should be terminated for her failure to correct the following conditions for which the child was found to be deprived even though Mother was given at least three (3) months to correct the conditions: substance abuse, ie. possessing and using illegal drugs/addiction; domestic abuse; neglecting Child’s nutritional, medical, dental and personal hygiene; lack of proper supervision; lack of a safe and sanitary home; threat of harm;  and lack of proper parental care or guardianship.  After reviewing the record, we find State sustained its burden of showing, with clear and convincing evidence, the grounds for termination of Mother’s parental rights pursuant to 10A O.S. Supp. 2015 §1-4-904(B)(5).  We also find the clear and convincing evidence supports the trial court’s determination that termination of Mother’s parental rights was in Child’s best interests.  The trial court’s order is AFFIRMED. Opinion by BELL, J.; PEMBERTON, P.J., and SWINTON, C.J., concur.  September 16, 2021

119,306  –  Boyd’s Construction Co. (Boyd and Company, LLC) and Zurich American Insurance Company, Petitioners/Appellants, v. Michael Pemberton and The Workers’ Compensation Commission Respondents/Appellees.  Appeal from the Workers’ Compensation Commission of Oklahoma, En Banc. Boyd’s Construction Co. appeals from a determination that the Workers’ Compensation Court had jurisdiction over Michael Pemberton’s claim because he purportedly entered into a contract in Oklahoma—Pemberton’s location at the time a friend who works at Boyd’s called from North Dakota to notify Pemberton of a potential job opportunity with Boyd’s in North Dakota. To establish that an employment contract was entered into within Oklahoma, the employee must prove that an employment offer was made by the employment agent and that it was accepted by the employee in Oklahoma. Because Pemberton did not establish that an offer or an acceptance of an employment contract occurred while either party was in Oklahoma, we REVERSE under the applicable de novo review of the jurisdictional issue. Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur.  September 16, 2021

119,386  –  In the Matter of B.A., a deprived child, State of Oklahoma, Petitioner/Appellee, v. Justin Adamo, natural father, Respondent/Appellant.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Theresa Dreiling, Trial Judge. Justin Adamo (Mr. Adamo) contends on appeal that an order terminating his parental rights should be reversed due to fundamental error, an untimely entered Individual Service Plan (ISP), and because clear and convincing evidence does not support the jury’s verdict that Mr. Adamo failed to correct conditions for which the minor child was adjudicated deprived. The propositions do not warrant reversal, and therefore, we AFFIRM. Opinion by PEMBERTON, P.J.; SWINTON, C.J., and BELL, J., concur.  September 16, 2021

119,577  –  Karen L. Dodge, Personal Representative of the Estate of Christopher Allen Dodge, Deceased, Plaintiff/Appellant, v. Alsokc, LLC, an Oklahoma Limited Liability Company d/b/a Fat Guy’s Burger Joint d/b/a Fat Guy’s Burger Bar; Mike Meehan, a/k/a Michael Meehan, an individual, Defendants/Appellees.  Appeal from the District Court of Tulsa County, Oklahoma.  Honorable Douglas E. Drummond, Trial Judge.  In this declaratory judgment action, Plaintiff/Appellant, Karen Dodge, the Personal Representative of the Estate of Christopher Allen Dodge (Dodge), appeals from the trial court’s grant of summary judgment in favor of Defendants/Appellees.  Dodge worked as chef and kitchen manager of Fat Guy’s Burger Bar, owned and operated by Defendant ALSOKC LLC (ALS), from 2010 until his death in 2018. Plaintiff filed suit requesting declaratory judgment of Dodge’s ownership interest in ALS, alleging Dodge obtained ownership interest through an oral or implied contract.  Upon de novo review of the record, we hold the trial court did not err in granting summary judgment to Defendants.  Viewing the summary judgment materials in the light most favorable to Plaintiff, this Court concludes there are no disputed issues of material fact that preclude summary adjudication of Plaintiff’s claim.  To survive summary judgment, the Plaintiff must be able to present sufficient evidence of the alleged oral contract and its terms to determine what duties and conditions were established.  Firstul Mortg. Co. v. Osko, 1979 OK CIV APP 61, ¶9, 604 P.2d 150.  We find there is insufficient evidence of the existence of an enforceable oral or implied contract.  AFFIRMED. Opinion by BELL, J.; PEMBERTON, P.J., and SWINTON, C.J., concur.  September 16, 2021

Division III

Division IV

118,423 – Jillian Ramick and Clayton Ramick, Plaintiffs/Appellants, vs. Howard-GM II, Inc., d/b/a, Smicklas Chevrolet, and BBVA Compass Financial Corp., Defendants/Appellees.  Appeal from an Order of the District Court of Oklahoma County, Hon. Richard C. Ogden, Trial Judge.  Plaintiffs, Jillian Ramick and Clayton Ramick, (Ramicks) appeal the trial court’s Order sustaining the motion to compel arbitration of defendants, Howard-GM II, Inc. d/b/a Smicklas Chevrolet, and BBVA Compass Financial Corp. (collectively referred to as Defendants).  After review of the appellate record, this Court finds the Defendants did not fraudulently induce the Ramicks into agreeing to the arbitraton clause.  In addition, the Ramicks have not shown that the arbitration clause contained in the Purchase Agreement is unconscionable.  This Court finds the trial court did not err in sustaining Defendants’ Motion to Compel Arbitration and the trial court’s Order sustaining Defendants’ Motion to Compel Arbitration is affirmed.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; FISCHER, V.C.J., and HIXON, P.J., concur.  September 15, 2021

119,073 — Vondall Peyton, Plaintiff/Appellant, vs. State of Oklahoma ex rel. Board of Review, Oklahoma Employment Security Commission, and American Litigation Law Group, Defendants/Appellees.  Appeal from an Order of the District Court of Oklahoma County, Hon. Cindy H. Truong, Trial Judge.  Vondall Peyton (Peyton) appeals the district court’s Journal Entry of Judgment affirming the decision of the Oklahoma Employment Security Commission’s Board of Review denying Peyton’s application for unemployment benefits.  Peyton alleges the district court erred by affirming the Board of Review’s determination that she engaged in misconduct, which disqualified her from receiving unemployment benefits.  We find the Appeal Tribunal’s factual findings, adopted by the Board of Review, were supported by the evidence presented at the hearing, and we find Peyton’s actions amounted to misconduct sufficient to deprive her of unemployment benefits pursuant to 40 O.S. Supp.2014, § 2-406.  Thus, the district court did not err by affirming the Board of Review’s Opinion.  AFFIRMED.  Opinion from Court of Civil Appeals, Division IV, by HIXON, P.J.; FISCHER, V.C.J., and RAPP, J., concur.  September 17, 2021

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